This Week in Luxembourg

In a short but sweet follow up to last year's Deutsche Telekom margin squeeze judgement, the First Chamber ruled in Konkurrensverket v. TeliaSonera Sverige this week. In its conclusions, the Court lists a number of factors that are or are not relevant to the abusive nature of the putative margin squeeze. As a matter of policy, I'm still not convinced that the current approach is correct, though...

The conlusion in Werynski is simple enough that quoting it will suffice: Art. 14 and 18 of Regulation 1206/2001 on cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters must be interpreted as meaning that a requesting court is not obliged to pay an advance to the requested court for the expenses of a witness or to reimburse the expenses paid to the witness examined.

In telecom law, there were some issues regarding phone books. In The Number Ltd and Conduit Enterprises Ltd v. OFCOM, the 3rd Chamber held that art. 5 of Directive 2002/22 (the Universal Service Directive) does not allow OFCOM to make BT provide its full OSIS database of all landlines - its own and those of other telecom companies - to all comers. In Deutsche Telekom v. Germany (NL, DE, FR), AG Trstenjak signs off on the German system for directory assistance, with the proviso that the assignment of obligations must not be used to fix an abuse of dominance problem, since that would be détournement de pouvoir.

In her opinion in Dias, AG Trstenjak shows how to do the sums of the Citizenship Directive, Directive 2004/38, in order to calculate whether someone has acquired a right of permanent residence.

AG Mengozzi has two opinions in the appeals in the monochloroacetic acid cartel case. In both cases, he argues that the appeal should be rejected. I could have overlooked something, but I didn't notice any particularly novel arguments. Arkema v. Commission (NL, DE, FR) and Elf Aquitaine v. Commission (DE, FR)

AG Cruz Villalón takes a look at some air traffic noise issues, and concludes that Belgium was entitled to do what it did. The Belgian Decree under attack was not an "operating restriction" in the sense of Directive 2002/30, since it made operation more difficult for the plaintiff, but not impossible. According to the AG, the fact that the Decree required the aircraft's noise to be measured from the ground was also not a problem, art. 4(4) of the Directive notwithstanding. European Air Transport v. Collège d'Environnement de la Région Bruxelles-Capitale

In the world of football, the General Court decided in favour of the UK and Belgium in their dispute with UEFA and FIFA over which matches qualifiy as being "of major importance" under art. 3a of Directive 89/552, as inserted by Directive 97/36. As a result, MS are entitled to block all European and World Cup matches from being sold to subscription channels. I'm not sure why these cases weren't joined, but they were adjudicated by the same panel, with the same judge-rapporteur. (Judge Forwood in the 7th Chamber.) UEFA v. Commission, FIFA v. Commission and FIFA v. Commission. Cf. bbc.co.uk

Last week, the court rejected an appeal in the Nintendo cartel/abuse of dominance case, and AG Sharpston had some fun working out the implications of ECHR fair trial jurisprudence for the General Court's review of the Commission's cartel decisions (par. 60-83), before concluding that it
doesn't really count as a separate ground of appeal and that none of the appellant's real arguments should succeed. KME Germany and others v. Commission.

Also last week, the ECJ decided that the Netherlands is allowed to require work permits for the hiring out of workers from the new Member States during the transition period. Vicoplus and other v. Minister of SZW.

AG Bot had an opinion on GMOs, specifically the "unintended and accidental presence in [honey] of pollen from genetically modified plants which are no longer capable of reproducing". He argues that such pollen are not themselves "organisms" within the meaning of Regulation 1829/2003, but that their presence in honey does trigger all sorts of other unpleasantness under that directive. Bablock and Others (NL, DE, FR)

P.S. The archive of these emails is here.

China and the WTO

Apparently, the terms of China's accession in 2001 to the World Trade Organization were terribly unfair. If you'd like 49 pages worth of details, here you go. Well, technically prof. Wu only spends about 30 pages stamping his foot, and uses the remainder to argue that in future DSB procedures this terrible injustice should be remedied as much as possible.

Abstract:

China joined the WTO in 2001 under exceptionally unfavourable, non-reciprocal and asymmetric terms of membership. China’s less-than-equal status raises difficult legal questions with respect to the rule of law in the WTO, as they call into question the normativity of the fundamental principles that underlie the WTO system. It is argued that, in DSB cases involving China’s WTO-plus obligations, restrictive interpretation should generally be used to determine the meaning of an ambiguous provision, as a value-oriented interpretative approach in favour of the equilibrium of rights and obligations of China and in deference to the uniformity and integrity of the WTO legal system. For bilateral trade relations to be mutually advantageous and more balanced, major WTO members should offer equal status to China in the world trading system, in exchange for China’s full compliance with its WTO commitments and greater contribution to the world trading system. This entails the development of reciprocal and cooperative trade policies on both sides.

So keep an eye out for this paper in a future issue of the Chinese Journal of International Law. And in the mean time: Could someone please get me a tissue?

Today in Luxembourg

The big case this week is Football Association Premier League. In this case, AG Kokott nearly doomed the Premier League to perpetual poverty by arguing in favour of a free internal market for satellite decoders and decoder cards. In the case at bar, little Portsmouth pub lady Karen Murphy used a (lawful) Greek decoder card to show Premier League matches in her pub. The AG now argues that this approach is protected under the freedom to provide services, thus dooming the FAPL's lucrative system of third degree price discrimination. Cf.BBC.co.uk

In Ebert, yet another lawyer tried to get out of the rule that you have to join the bar in order to practice law in a given country, and as before he failed. You have to join the bar to practice law, and if you want to practice law in another MS you can rely on the rules for mutual recognition of diplomas, or on the specific rules of Directive 98/5, but EU law won't make it any easier than that.

AG Trstenjak had an opinion in yet another Bud v. Budweiser case. (Cf. this opinion from 2009, this CFI judgement from 2009, this ECJ judgement from last July, and this opinion from September.) As it happens, the AG argues that EU law cannot help here, since Directive 89/104 is not temporarily applicable to the problem at hand. This particular case comes from the UK, where both parties apparently have been quarreling about the trademark since they both entered the market in 1973-74.

In consumer protection law, AG Mengozzi had an opinion in the interesting case of Ving Sverige (DE, FR). The question concerns whether certain advertisements by budget airlines, travel operators, etc. qualify as an invitation to purchase in the sense of Directive 2005/29. If they are, the companies in question might have a problem with such provisions as art. 7(4)(c) of the Directive, given that they are often somewhat - ahum - optimistic about the price at which the product in question can actually be obtained. The AG suggests letting the national court sort most of this out, so we'll have to wait and see what the ECJ says.

Finally, in the General Court there is a bit of fun with EPSO. As far as I know, it is usually unsuccessful applicants who have a problem with the procedures, but in this case the case is brought by Italy. Their grievance was that EPSO's expression of interest for contract agents no. EPSO/CAST/EU/27/07 was published only in the three working languages, and not in the other 20-odd official languages. The General Court agrees that this is in violation of the relevant secondary law. Italy v. Commission (FR)

P.S. The archive of these emails is here.